Arokia Raj Morais vs Mabia Bibia Rani Morais and Others

M. Thanikachalam, J.—This is a suit filed by the husband to dissolve the marriage between himself and the first respondent on the ground of

adultery, u/s 10 of the Divorce Act, 1869, hereinafter called ''the Act''.

The marriage between the petitioner and the first respondent was solemnised on 3.5.1995 in accordance with the Christian Rites and Customs,

at St. Andrews Church, Madras-600 112. After the marriage, both were living happily in the matrimonial home. At the time of the marriage, the

first respondent was working as a teacher and obtaining permission from the petitioner, she continued to work as a teacher even after the marriage

also.

In the month of September 1995, the family members of the petitioner and the first respondent including the petitioner and the first respondent

went to Mysore for sight-seeing, where they happened to meet a teacher of Holy Cross Convent, Villupuram, where the first respondent did her

school studies. On seeing the teacher, the first respondent not only became nervous but also ran away from the place, which conduct revealed on

enquiry, that she was having illegal relationship and immoral activities during her school days. The first respondent without any reason used to go to

the matrimonial home in the evenings very late and even she used to leave the house on Saturdays and Sundays also on the pretext of special

classes. The enquiry revealed that respondents 1 & 2 continued their illegal activities applying leave also.

When the petitioner came to know about the activities of the first respondent with the second respondent, the petitioner requested the first

respondent to resign the job, for which the first respondent is not willing. When the matter was reported to the father of the first respondent, he

requested the petitioner to bring the first respondent to Cochin and accordingly, the first respondent went to Cochin on 5.1.1996, where she gave

birth to a male child on 18.2.1996, which was informed to the petitioner on 21.2.1996.

The petitioner and his uncle used to receive anonymous phone calls informing about the immoral character of the first respondent and the further

enquiry also revealed that the first and the second respondents continued their illegal relationship from Cochin. Though the first respondent returned

to Madras, she used to pick up quarrel often not only with the petitioner, but also with other family members. The first respondent, when

questioned about her conduct in the presence of her own relatives, admitting her immoral life with the second respondent, executed letters on

30.11.1996. Not only that, she has also confessed in writing that the child born to her is not the child born through the petitioner. Because of the

said admissions and because of the continuous activities of the first respondent leading an adulterous life, it is impossible for the petitioner to live

with the first respondent as husband and wife. Reporting the above facts, notice has been issued, for which a false reply has been given and

therefore, the petitioner is constrained to file this petition to dissolve the marriage on the ground of adultery.

The first respondent''s case in brief:

(a) The second respondent and the first respondent were known to each other as colleagues during their employment at St. Joseph''s Girls School,

Vepery only in 1994. In August 1994 itself, the second respondent resigned from the employment of the school, went abroad and settled.

Therefore, the allegations imputing adultery by the first respondent with the second respondent is totally false and malicious, invented and projected

at the instance of the petitioner''s mother and sister, to enable the petitioner to marry a girl of his choice, if possible, after dissolving the marriage

with this respondent.

(b) As far as the third respondent is concerned, he was known to the first respondent during their schooling at Holy Cross Convent at Villupuram

and after 1987-1988, there was no contact with the third respondent. Therefore, it is also incorrect to state that there is illegal relationship between

the first and the third respondent.

(c) True that in the month of September 1995, this respondent along with the petitioner''s family visited Mysore, but the allegations that this

respondent ran away on seeing her teacher is baseless and untrue. When the first respondent was pregnant, a telegram was sent by her father that

she should be brought to Cochin for delivery since there she could be nursed by her mother. Conceding this, the petitioner himself had

accompanied the first respondent to Cochin and left her with the family members, not for otherwise.

(d) After delivery, the first respondent remained in Cochin for six months and returned to matrimonial home in September 1996. The first

respondent was forced to make some declaration by the petitioner''s mother, who had refused access even to the child. Even they went to the

extent of threatening to throw the seven months old baby into the well and because of this threat and coercion, two declarations were made in

September 1996, not conceding any adulterous life with the other respondents. This respondent has not committed any adultery, which is known

to the petitioner also. Since the petition is filed on the false allegations and imaginary grounds, the same has to be dismissed.

On the above pleadings, the following issues were framed on 10.4.2002 for decision:

(1) Whether the respondent is guilty of adultery ?

(2) Whether the petitioner is entitled to a Decree of divorce on the ground of adultery ?

The third respondent by name Pasupathyrajan though arrayed as adulterer, subsequently, he was given up and therefore, it is needless to go into

the allegations levelled in the petition connecting the first respondent and the third respondent.

Issues 1 & 2:

The undisputed facts are that the petitioner and the first respondent belong to Christianity, that their marriage was solemnised according to

Christian Rites and Customs on 3.5.1995, that thereafter, they were living as husband and wife for some tine very happily, that the first respondent

also gave birth to a male child on 18.2.1996 (though paternity is disputed) and that within two years, the happy married life of the petitioner and

the first respondent was disturbed so to say came to an end, resulting this petition for divorce on the ground of adultery.

According to the petitioner, the first respondent is living in adultery or she is having immoral activities with the second respondent and that is

why as contemplated u/s 11 of the Divorce Act, the adulterer is also impleaded as co-respondent. The second respondent is neither supporting the

petitioner nor supporting the first respondent, since remained ex parte. The allegations levelled by the husband against the wife regarding the

immoral activities are stoutly denied. Therefore, the burden is very heavy upon the shoulders of the petitioner to prove the adultery. By direct

evidence proving the factum of adultery is generally impossible. On mere allegations or under assumption or presumption, the matrimonial

relationship cannot be snapped for mere asking. True, there may not be direct eye witnesses to prove the adultery and the act of adultery could be

proved by unimpeachable circumstances, such as proving the conduct of the wife viz., she joining with the adulterer going elsewhere as she likes,

which was seen by somebody, by examining them, and returning to the matrimonial home unmindful of the consequences or the reaction of the

family members.

In this case, by going through the entire petition, I am unable to find any specific instances of adultery said to have been committed by the first

respondent, except the bald allegations levelled, that too more or less prior to the marriage, not subsequent to the marriage giving specific dates

with specific instances. In para-6 of the petition, the conduct of the first respondent narrated appears to be prior to the marriage i.e. during her

school days, which will not come to the aid of the husband to snap the matrimonial relationship. In para-7 of the petition, though it is stated that

respondents 1 & 2 applied leave, left the school, etc., no other details are given, where they had been to, where they have stayed, etc. Similarly in

paragraph-8 also, the details given are regarding the conduct of the first respondent at Villupuram during her school days and no instance is

specifically stated that after the marriage also, the alleged illegal activities or immoral activities of the first respondent continued with the other

respondents. In paragraph-10, some anonymous letter is stated and in paragraph-11, it is alleged that the first respondent used to pick up quarrels

with the family members and when enquired she confessed about her illegal activities, which I will discuss infra. Thus by going through the entire

averments, I am unable to find any specific instances of adultery connecting respondents 1 & 2.

In the counter, the first respondent has stated in paragraph-3, which is repeated in paragraph-9 that the second respondent had resigned from

the employment of the school in August 1994 and he settled abroad. Therefore, if it is to be held that the first respondent would have had immoral

activities with the second respondent, it must be shown that the second respondent was in India after the marriage of the first respondent with the

petitioner. Then only the continuance of the adultery said to have been committed by the first respondent would give cause of action to the

petitioner for the dissolution of the marriage. In this context we have to see Section 10 of the Act.

Section 10 of the Act enumerates the grounds for dissolution of marriage and Section 10(1)(i) of the Act says the marriage may be dissolved

on the ground that since the solemnization of the marriage, the respondent has committed adultery, thereby meaning the alleged adultery must be on

and after the marriage and not before the marriage. Therefore, the adultery said to have been committed by the first respondent, if at all giving

cause of action for the dissolution of the marriage must be on and after 3.5.1995 and not prior to that.

The husband has been examined as P.W. 1. He had narrated 1995 events at Mysore, which has nothing to do with the adultery after the

marriage, if any. He would further state ""twice or thrice I have seen the first co-respondent dropping my wife at the street corner"" and nothing

more. Assuming it is correct, as colleague, the second respondent might have dropped the first respondent and this alone will not lead to the

presumption that, both should have committed adultery. No specific instance is spoken to by P.W. 1 as if he has seen his wife with the second

respondent in a compromising mood or closely associated, leading to immoral life also. He has not examined any other person, who might have

seen respondents 1 & 2 while going together, pursuant to the immoral activities in order to stay elsewhere. The oral evidence of P.W. 1, in my

considered opinion, fails to prove the so called adultery.

The sheet anchors of the petitioner''s case, to prove the adultery are Exs.P-2 to P5. Ex.P-2 is an anonymous letter, which cannot be the basis

to prove the adultery and it requires out right rejection, thereby rejected. In paragraph-11 of the plaint, we find some reference about the letters

said to have been executed by the first respondent on 30.11.1996 exposing her immoral life. Those letters must be Exs.P-3 & P-4. By going

through these two letters, I am unable to find any specific date on which it was written. Regarding these two letters written in the stamp papers,

there is an admission also in the counter about the writing of these two documents, challenging the same, as obtained by coercion or threat as the

case may be. To prove that these two letters viz., Ex. P-3 & P-4 were obtained either by the petitioner or by his mother using threat or coercion,

no evidence has been let in on the side of the first respondent also. In this view, even assuming that these two letters were written voluntarily by the

first respondent, in my considered opinion, certainly it will not advance the case of the adultery for dissolving marriage. In Ex.P-3 the first

respondent has narrated about her pathetic life, how she was gang raped, etc. in the year 1993. In this letter itself, it is stated Charles Shekar, the

second respondent left to Singapore in the first week of October i.e. in 1993 or 1994, as the case may be and this is the specific stand of the first

respondent also in the written statement. No where in Ex.P-3 or P4, the first respondent has admitted about her immoral activities or adulterous life

with the second respondent or the third respondent, as the case may be. In Ex.P-4, the incident narrated is of the year 1992 and no incident is

mentioned after the marriage.

Law will not presume that a girl, who was compelled to have sexual activities with another man by force or otherwise, should have continued

the same for ever. Therefore, unless it is made out that even after the marriage also, she continued the same activities, placing reliance upon Exs.P-

3 and P-4, it is purely impossible to conclude that the second respondent was leading an adulterous life, since the solemnization of the marriage. In

this view of the matter, whether Exs.P-3 and P-4 were obtained by coercion or otherwise, since these documents fail to disclose that the first

respondent had committed adultery, on the strength of these two documents, no decree for dissolution could be granted.

Ex.P-5 is dated 30.11.1996, wherein it is stated ""my son born on 18.2.1996 is not the child of Mr. Arokia Raj Morais"" and nothing more.

P.W. 1 would state that the petitioner and his mother threatened her even to kill her seven months old child insisting that she should make such a

declaration and only in order to avoid that situation, she was compelled to write Ex.P-5. The very fact that Exs.P-3 and P-4 do not disclose any

adultery after the marriage would belie Ex.P-5 also and in my opinion, as rightly claimed by the first respondent, Ex.P-5 should have come into

existence under some pressure and taking into account of this alone, without any other corroboration, I am unable to label the first respondent as a

lady committed adultery, resulting the birth of a male child on 18.2.1996 as indicated above.

The specific case of the petitioner that the first respondent continued her adulterous life with the second respondent must be incorrect, which

could be seen from Ex.P-3. The first respondent has stated in Ex.P-3 that the second respondent left to Singapore. It is not the case of the

petitioner, that the first respondent had any sexual activities with any other person apart from the second and third respondents. There is no

mention in Ex.P-5, that the second respondent is the father of the male child. If at all, Ex.P-5 may lead to the conclusion that the petitioner is not

the father, but that does not mean, the second respondent must be the father of the child. This being the position, it may not be safe to come to the

conclusion that the child born to the first respondent on 18.2.1996 is not the child of the petitioner. Assuming that the first respondent had illegal

activities with some other person than the second and the third respondents resulting the birth of a male child, then that person also should have

been impleaded as a party, as mandated under law, which is not the case in the petition. Therefore, relying upon Ex.P-5, which might have come

into existence, under mysterious circumstances, it is not possible to dissolve the marriage between the petitioner and the first respondent. Except

these documents, and the uncorroborated oral testimony of P.W. 1, to substantiate the adultery alleged, no other acceptable evidence has been let

in, and because of these reasons, the petition should fail. Hence the two issues are answered accordingly.

In the result, the petition is dismissed, but under the facts and circumstances of the case, ordering the parties to bear their respective costs.